Landlord May Be Liable When Tenant’s Facebook Harassment Leads To Rape

What is a landlord’s obligation if they learn that a resident is harassing another tenant on Facebook or other social media websites? A recent case from an Ohio appellate court, reported by Eric Goldman of Forbes, illustrates the pitfalls of this situation.

The case involves the interactions between Mr. Haynes, the live-in boyfriend of Ms. Schmidt (who was on the lease, while Haynes was not), and Lindsay, another tenant who lived in the apartment right directly above. Lindsay repeatedly complained about the noise coming from Schmidt’s apartment, and alleged that Schmidt and Haynes retaliated for her complaints in a variety of ways, including loudly banging on her door and screaming at her. Subsequently, Lindsay received a message on her Facebook account asking her to have sex and linking to a pornographic video depicting people who looked similar to Lindsay and Haynes. In response to Lindsay’s repeated questions, Haynes did not admit to authoring the Facebook messages, but Lindsay believed he had.

Lindsay showed the Facebook transcript to her landlord and asked to be released from her lease because she feared Haynes. Instead, the landlord recommended she contact the police (which she did) and moved her to another apartment in the same complex. The landlord also allegedly told Haynes and Schmidt that Lindsay was moving and warned them to leave her alone. The landlord discovered Haynes was not on the lease and told him he would have to leave. Haynes tried to get onto the lease but his credit wasn’t approved, so the landlord didn’t add him to the lease. It also, however, did not evict him.

A few days after Lindsay’s move, Haynes raped Lindsay in her new apartment. He was convicted of this crime and received a nine-year jail sentence. Lindsay then sued the landlord for its role in the situation.

The court started with the premise that “landlords do not have a duty to protect their tenants from the criminal acts of third parties.” However, an exception applies “when the landlord should have reasonably foreseen the criminal activity and failed to take reasonable precautions to prevent such activity.” The appellate court ruled that a jury might find that the landlord didn’t satisfy its obligation because it knew Lindsay was frightened of Haynes and he had demonstrated “dangerous propensities” towards her.

With respect to the Facebook message, the court said Lindsay had “a shock of terror” realizing that Haynes had tracked down her online identity and knew so much about her. Lindsay also said she told the landlord that Haynes was “stalking” her on Facebook. The court summarized: “While Haynes’ Facebook communication alone did not rise to the level of criminal activity, it nonetheless made Towne Properties management even more aware of why Lindsay feared Haynes, and aware of Haynes’ escalating behavior toward Lindsay.” As a result, the court sent the case to a jury trial.

In this case, the landlord did not ignore Lindsay’s complaints; it took a series of remedial steps and directed her to the police, who could provide more help. What more should the landlord have done? Firstly, it could have let Lindsay out of her lease, but landlords don’t generally cancel leases when tenants say they feel unsafe in their apartments, especially when there had not been any explicit threats. Secondly, the landlord could have banned Haynes from the building, but it deferred to the police after the matter was referred to them. It might have thought that warning Schmidt and Haynes to stay away from Lindsay was an appropriate step, but the court said that it may have made matters worse.

The key issue is that Haynes’ Facebook messages “escalated” a nasty (but possibly routine) tenant dispute about noise into an online privacy intrusion. The court’s opinion never states that Haynes admitted authoring the messages, so the landlord could not be certain he wrote them. Still, the case suggests that the combination of the tenant’s fear for her physical safety, plus the invasion of her online privacy while she was inside her apartment, creates an unacceptable environment that landlord should not have ignored.